A blog on eminent domain, land-use, and related matters.

Monthly Archives: July 2015

First. The annual Brighm-Kanner Property Rights Conference at William & Mary College Law School, Williamsburg, VA, will take place on October 1 – 2, 2015, at the law school. It will consist of the award of the 2015 Brigham-Kanner prize to Prof. J. W. Singer, on October 1, at the Wren Hall. The four panels which will take place on the following day, October 2, 2015, are named respectively: (a) Property as a Form of Governance, (b) Civil Forfeiture of Property, (c) Of Pipelines, Drilling, and the Use of Eminent Domain, and (d) Property Rights in the Digital Age.

For a program brochure, further information, or registration contact Megan Wyatt, William & Mary Law School, P O Box 8797, Williamsburg, VA 23187-8795, or at mnwyatt@wm.edu.

Second. The annual ALI-CLE program on Eminent Domain and Land Valuation Litigation, will take place on January 28-30, 2016, at the Hotel Van Zandt in Austin, Texas. For further details, the faculty list, and registration information, contact the program organizers by e-mail at WWW.ALI-CLE.ORG/CX015 or by phone (in Philadelphia) on 800-CLE-NEWS.

These are both good programs, with the Brigham-Kanner conference leaning more to an academic outlook, and the ALI-CLE one more practical and of greater interest to practicing lawyers and appraisers.

Take them both in if time and your budget allow it. If you are into eminent domain, it will be worth it.

We just read Robert Thomas’ essay summing up in detail the Horne case again on his blog www.inversecondemnation.com July 21, 2015, and we recommend it highly. See Horne v. USDA: Way More Than Silly Raisin Jokes. We surmise that this will be the backbone of a paper that Mr. Roberts will present at the next ALI-CLE Eminent Domain Program which you should attend on general principles if you practice in this field of law.

The whole essay is very good, but we note with particular interest Mr. Thomas’ detailed dissection of Justice Breyer’s dissent. The Justice is supposed to be a gonzer khokhem — the real smarty on the Supreme Court — but, alas, in this case he doesn’t seem to understand the basic point of eminent domain law that differentiates between (a) the question of whether a taking has occurred and (b) if so, how to calculate the resulting just compensation that is due. Sort of like the difference between liability and damages in tort law. Anyway, Horne dealt only with part (a) — liability.

Thus, in virtually every part-take eminent domain case, where the taking is established or conceded, the questions that are addressed are: the value of the part taken, the amount of severance damages to the remaining property, and the amount of special benefits conferred on the property that remains in the condemnee-owner’s ownership after the taking. You then offset the benefits against the severance damages, add the net severance damages,* if any, to the value of the part taken and, voila! — just compensation.

In other words, there have been cases in which there have been takings (either conceded or readily demonstrable) in which no compensation was due. In California, the second Tobriner case (partial taking but no damages proven — long story), and the Ricards case (nominal damages only even though there was taking of access but no damages established.)

So we are baffled why anyone with the smarts of Justice Breyer insisted on putting the cart before the horse by demanding that the amount of damages be determined, and used as a determinant of whether a taking occurred — which in this case could not be in issue because the feds pulled up in trucks at Mr. Horne’s farm and demanded that he physically load ’em up with his some $400,000 worth of his raisins without compensation. If that isn’t a taking, what is?

So our point is that ideology-based judicial result-orientation can be thicker than legal doctrine, and, indeed common sense.

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* Actually, there are variations in this formula, like the before-and-after approach that deducts the property’s “after” value from its “before” value to arrive at just compensation, but we won’t get into all that because our point remains the same no matter which valuation method you use.

As readers who have been following our blog and our law journal writings know, for the past decade or so we have been following the decline of urban America, and the factors that have inspired it and continue to contribute to it. See our latest, Gideon Kanner, Detroit and the decline of Urban America, 2013 Mich. State Law Review 1547, which tells the story that neither the general press nor the urban planners like to confront and deal with. And if you do read it, don’t miss the picture on p. 1560.

This morning’s dispatch in the New York Times, made up for that, even if it made us sputter over our morning coffee. In an article in the The Arts section of all places, we came across a piece (Michael Kimmelman, Coping After Renewal Cleaves, NY Times, July 16, so15) that for a change acknowledges the reality that peoples’ wholesale abandonment of cities took place because on the one hand, over the decades suburban living became more attractive, more lucrative and safer (a huge drawing card for families with children), and cities grew crime-ridden and unpleasant, with quality and safety of urban schools descending to catastrophic levels, to say nothing of the devastation wreaked upon cities by urban renewal, urban highways and redevelopment projects that destroyed modestly priced dwellings and displaced populations that sensibly pulled up stakes and headed out to the suburbs.

Quoth the Times:

“Urban renewal conspired to promote white flight, encouraged gated developments . . . and destroyed traditional African-American neighborhoods, replacing them with with public housing complexes that were left to rot.

And as for urban freeways, we never tire of noting that it was former Detroit Mayor Jeffries who accurately predicted way back in the 1940s that while freeways would provide easier commuting to suburbanites’ city jobs, they would also make it easier for city dwellers to move out to the suburbs with the result that cities — notably Detroit — would become depopulated and go bankrupt. Which is exactly what happened.

Though it does not receive much coverage in the press, people are leaving LA, while investors, often foreign, are snapping up individual homes at outlandish prices in order to rent them out at fancy new rents, or as a place to park their money safely, as contrasted with their home countries where safety may be debatable.

Apartment buildings are going up in Los Angeles, but rents are high and the pace at which they are going up is not sufficient to take care of the demand. The locals who sell and move out do so because they find the rising cost of housing increasingly financially unmanageable. See Want to Live in Orange County? It’ll Cost You $1,848 a Month for an Apartment – an All-Time Average High, Orange County Register, July 15, 2015. For another recent article dealing with this problem, see http://www.laweekly.com/news/why-people-really-leave-los-angeles-or-any-other-big-city-5785769

The Winona Post of July 13, 2015 (Chris Rogers, Mn/DOT Settles With Winona Leasing) reports that after the Minnesota DOT offered Winona Leasing $600,000 for its land on which a car rental business was conducted, the offer was rejected and eventually, Mn/DOT settled for $900,000. The trial court also awarded the owners $32,000 in attorneys’ fees in spite of the fact that the owner’s contract with his lawyers called for a fee of one-third of the overage, or $100,000.

As the Romans had it, tempora mutantur et nos mutamur in illis, and here is an illustration of their wisdom: things that are deemed admirable in the 21st century are not the same as they were in the 1950s.

If you do any reading and, particularly, writing on subjects related to lawyers, trials and the morality thereof, to say nothing of race relations in America, it is now de rigeur to offer a head-shaking comment deploring the startling development that the newly discovered Harper Lee novel, Go Set a Watchman, depicts Atticus Finch, the saintly lawyer-protagonist of To Kill a Mockingbird, not as a moral giant but as an ordinary Southern gentleman who was hostile to desegregation even in the wake of Brown v. Board of Education. Finch, played by Gregory Peck in Mockingbird, as you may recall, was the soft-spoken, dignified defense lawyer who wore a vest with his seersucker suit in the stifling summer heat of Alabama, and, braving the hostility of his neighbors, defended a black man who had been falsely charged with the rape of a white woman, an accomplishment that made Finch a durable hero of legal tradition.

But now, in Go Set a Watchman (a sequel to Mockingbird) Finch turns out to be, not the moral giant we were led to believe he was, but only a flawed human being influenced by the ideas and mores of the society in which he lived, who didn’t think that Southern blacks of his day were “ready” for full integration into the American majority white society. So what? Which is not to say that we are about to defend the old Jim Crow South. Hell no! But even so, Finch’s critics miss an important professional point.

We — we lawyers, that is — need to be reminded periodically that we represent a client’s interest in a case, not the client as a person. Thus, counsel who defend murderers do not thereby endorse murder, and it is in the finest legal tradition for a lawyer to defend or otherwise represent people who may be despised by the community in which they live, but who still have legal rights that a principled society must enforce at its peril. That may not be “nice” in some abstract moral sense, and a lawyer always retains the right to decline representation of a client whose activities he or she finds so repugnant as to impair his ability to do a good job. But neither is there anything professionally-ethically wrong with a lawyer’s decision to accept the representation and to represent the bad guys. The vice versa is also true: a lawyer is free to represent the position of a moral client irrespective of a redneck community’s hostile feelings. As our sainted USC law professor Vic Netterville explained to us over 60 years ago, you don’t go to law school to learn how to be a nice guy — or a conformist.

So we wish to make the unremarkable point that there is a huge difference between lawyers’ subjective, personal beliefs and the values of their clients, however noble or morally repugnant the latter may be.

Anyway, that’s what our betters taught us in law school, and our decades of practice have only reinforced that bit of teaching. As it turns out, Atticus Finch was a flawed human being as are most of us. And don’t forget that he was also a crack shot who could dispatch a mad dog with a single shot from a block away, which, one supposes, made him a Second Amendment aficionado as well as a fan of the 14th Amendment, as well as an effective courtroom lawyer who could ably represent a client who was despised by the community.

“Theoretically, the suburbs should be the dominant politically force in America. Some 44 million Americans live in the core cities of America’s 51 major metropolitan areas, while nearly 122 million Americans live in the suburbs. In other words, nearly three-quarters of metropolitan Americans live in suburbs. [ ] Yet it has been decided, mostly by self-described progressives, that suburban living is too unecological, not mention too uncool, and even too white for their future America. Density is their new holy grail, for both the world and the U.S. Across the country efforts are now being mounted—through HUD, the EPA, and scores of local agencies—to impede suburban home-building, or to raise its cost. Notably in coastal California, but other places, too, suburban housing is increasingly relegated to the affluent.” Joel Kotkin, Countering Progressives’ Assault on Suburbia, Real Clear Politics, July 10, 2015.

Kotkin’s conclusion:

“In the coming year, suburbanites should demand more respect from Washington, D.C., from the media, the political class and from the planning community. If people choose to move into the city, or favor density in their community, fine. But the notion that it is the government’s job to require only one form of development contradicts basic democratic principles and, in effect, turns even the most local zoning decision into an exercise in social engineering.”

So in the end, it’s a matter of individual choice which, in a free society, should be determined by people’s decisions where and how they wish to live, not by bureaucrats imposing lifestyles by fiat.